Rivera v. Union County Prosecutor's Office

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.

    Richard Rivera v. Union County Prosecutor’s Office (A-58-20) (084867)

Argued January 4, 2022 -- Decided March 14, 2022

RABNER, C.J., writing for a unanimous Court.

       This appeal centers around an internal affairs investigation into misconduct by
a former police director. The key question is how to balance the need for
confidentiality in internal affairs investigations with the public’s interest in
transparency when a member of the public seeks access to records of an
investigation. The Court considers both the Open Public Records Act (OPRA) and
the common law right of access.

       In February 2019, an attorney made a complaint to the Union County
Prosecutor’s Office on behalf of employees of the Elizabeth Police Department. The
complaint alleged that Police Director James Cosgrove, the civilian head of the
Department for more than two decades, used racist and sexist language to refer to
employees on multiple occasions. In response, the Prosecutor’s Office conducted an
internal affairs investigation. On April 16, 2019, the Office sustained the
complaints; ten days later, the Attorney General issued a public statement describing
the investigation and its conclusion and calling upon Cosgrove to resign, which he
did.

       In July 2019, plaintiff Richard Rivera filed a request for records with the
Prosecutor’s Office based on OPRA and the common law. As relevant here,
plaintiff asked for “all internal affairs reports regarding” Cosgrove. The
Prosecutor’s Office denied the request on the ground that it was “exempt from
disclosure under OPRA” and not subject to disclosure under the common law.

       Plaintiff filed a complaint in 2019 against the Prosecutor’s Office and its
records custodian, relying on OPRA and the common law. The Prosecutor’s Office
answered, citing the need for confidentiality based on witnesses’ expectations of
privacy and the need to preserve the Office’s ability to gather facts in similar
investigations. The City of Elizabeth intervened and likewise stressed the
importance of confidentiality, noting that witnesses’ identities could be determined
even with redactions and that disclosure would make it less likely that employees
would report alleged workplace policy violations.

                                           1
       The trial court concluded the internal affairs report should be made available
under OPRA. The Appellate Division reversed, finding that the requested materials
were not exempt as “personnel records” under OPRA ( N.J.S.A. 47:1A-10), but that
they could not be disclosed under OPRA on other grounds ( N.J.S.A. 47:1A-1, -9(a)
and (b)). Next, the Appellate Division rejected plaintiff’s common law claim,
determining that defendant’s interest in preventing disclosure outweighed plaintiff’s
right to the documents. The Court granted certification.  246 N.J. 236 (2021).

HELD:        *OPRA does not permit access to internal affairs reports, but those
records can and should be disclosed under the common law right of access -- subject
to appropriate redactions -- when interests that favor disclosure outweigh concerns
for confidentiality. The Court provides guidance on how to conduct that balancing
test.

               *In this case, the internal affairs report should be disclosed, as the
Attorney General properly concedes, after the trial court reviews it and redacts parts
that raise legitimate confidentiality concerns. The Court remands the matter to the
trial court for it to review the report, complete the necessary balancing test, and
enter an order of disclosure. The Court asks the trial court to proceed expeditiously.

1. OPRA gives the public ready access to government records unless the statute
exempts those records from disclosure. Defendants argue that internal affairs
reports are exempt under several sections of the statute. One of those provisions
states that OPRA “shall not abrogate or erode any executive or legislative privilege
or grant of confidentiality heretofore established or recognized by the Constitution
of this State, statute, court rule or judicial case law.”  N.J.S.A. 47:1A-9(b)
(emphases added). (pp. 12-13)

2. Section 9(b) clearly exempts internal affairs reports from public disclosure. The
Attorney General has the authority under  N.J.S.A. 52:17B-4(d) to “adopt rules and
regulations for the efficient conduct of the work and general administration of the”
Department of Law and Public Safety. Since 1991, the Attorney General has
promulgated an Internal Affairs Policy and Procedures manual (IAPP) to address
complaints of police misconduct; the IAPP contains a confidentiality provision that
has largely remained intact since 1991. The current IAPP allows for disclosure in
certain limited circumstances, but access is to be granted “sparingly,” for good
cause. In 1996, the Legislature enacted  N.J.S.A. 40A:14-181, which directs all law
enforcement agencies to “adopt and implement guidelines which shall be consistent
with the” IAPP manual. When section 181 was enacted, the IAPP conferred
confidentiality on internal affairs records, and the new law effectively made the
IAPP’s provisions required policy for law enforcement agencies. Viewed through
that lens, section 181, a statute, effectively recognizes a grant of confidentiality
established by the IAPP, and OPRA may not abrogate that grant of confidentiality.
                                           2 See N.J.S.A. 47:1A-9(b). Section 9(b) of OPRA therefore exempts internal affairs
reports from public disclosure, and the Court does not reach the parties’ arguments
relating to sections 1, 1.1, 9(a), or 10 of OPRA. (pp. 13-15)

3. OPRA does not limit the right of access to government records under the
common law. N. Jersey Media Grp., Inc. v. Township of Lyndhurst,  229 N.J. 541,
578 (2017);  N.J.S.A. 47:1A-8. The definition of a public record under the common
law is broader than under OPRA. To obtain records under “this broader class of
materials, [a] requestor must make a greater showing than OPRA requires.” Id. at
578. In particular, “(1) 'the person seeking access must establish an interest in the
subject matter of the material’; and (2) 'the [person’s] right to access must be
balanced against the State’s interest in preventing disclosure.’” Ibid. (pp. 15-16)

4. Finding the right balance calls for a careful weighing of the competing interests.
Loigman v. Kimmelman,  102 N.J. 98, 108 (1986). In Loigman, the Court identified
six factors to consider in balancing those interests. Id. at 113. The list focuses
primarily on the State’s interest in preventing disclosure, but the public’s level of
interest must also be assessed. In Gannett Satellite Information Network, LLC v.
Township of Neptune, the Appellate Division recently determined that a balancing
of the interests favored the release of a police officer’s internal affairs records.  467 N.J. Super. 385, 391-92, 408-09 (App. Div. 2021). (pp. 16-18)

5. Here, the trial court ordered disclosure based on its reading of OPRA. As a
result, it did not analyze Rivera’s common law claim or balance the relevant
interests. On appeal, neither party briefed or argued the common law claim. The
Appellate Division mistakenly assumed original jurisdiction and addressed the issue.
In this case, the record is incomplete and does not allow for the fact-specific
balancing test required under the common law. The internal affairs report is not in
the record and has not been reviewed by the trial court. And there are no factual
findings to review. The trial court is the best forum to elicit facts about the parties’
interests under the common law and to balance those interests. (pp. 19-21)

6. The Court provides guidance about the balancing test. The Loigman factors are
not a complete list of relevant considerations. See  102 N.J. at 113. They largely
examine only one side of the test -- the need for confidentiality -- which “should be
balanced [against] the importance of the information sought to the plaintiff’s
vindication of the public interest.” Ibid. In general, the public has an interest in the
disclosure of internal affairs reports to hold officers accountable, to deter
misconduct, to assess whether the internal affairs process is working properly, and to
foster trust in law enforcement. See Lyndhurst,  229 N.J. at 579-80. (pp. 21-22)

7. The public interest in transparency may be heightened in certain situations
depending on a number of considerations, including: (1) the nature and seriousness
                                           3
of the misconduct; (2) whether the alleged misconduct was substantiated; (3) the
nature of the discipline imposed; (4) the nature of the official’s position; and (5) the
individual’s record of misconduct. The Court explains how those factors can weigh
in the balancing test, stressing that it does not rely on whether an allegation has
already been the subject of public interest through official statements or leaks. To
allow a court to assess the factors -- those in favor of confidentiality as well as
disclosure -- the parties should present more than generalized, conclusory
statements. See Paff v. Ocean Cnty. Prosecutor’s Off.,  235 N.J. 1, 28 (2018);
Lyndhurst,  229 N.J. at 580. The Court does not require judges to review actual
internal affairs reports in every case because review of the relevant factors may
suffice in individual cases. (pp. 22-24)

8. Considering the interests here, the Court notes that the public interest in
disclosure is great. Racist and sexist conduct by the civilian head of a police
department violates the public’s trust in law enforcement. It undermines confidence
in law enforcement officers generally, including the thousands of professionals who
serve the public honorably. Public access helps deter instances of misconduct and
ensure an appropriate response when misconduct occurs. Access to reports of police
misconduct promotes public trust. The Court cannot fully evaluate defendant’s
concerns about confidentiality because they are supported by generic arguments.
(pp. 24-25)

9. The trial court here can best assess any potentially legitimate confidentiality
concerns by reviewing the report in camera and making appropriate redactions. At a
minimum, judges should redact the names of complainants, witnesses, informants,
and cooperators, as well as information that could reasonably lead to the discovery
of their names; non-public, personal identifying information about officers and
others, such as their home addresses and phone numbers; and personal information
that would violate a person’s reasonable expectation of privacy if disclosed, such as
medical information. The Court agrees with the Attorney General that the redacted
internal affairs report should be disclosed. (pp. 25-26)

      REVERSED and REMANDED for further proceedings.

JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS and
JUDGE FUENTES (temporarily assigned) join in CHIEF JUSTICE RABNER’s
opinion.




                                           4
       SUPREME COURT OF NEW JERSEY
             A-
58 September Term 2020
                       084867


                    Richard Rivera,

                 Plaintiff-Appellant,

                          v.

         Union County Prosecutor’s Office,
             and John Esmerado, in his
            official capacity as Records
          Custodian for the Union County
                Prosecutor’s Office,

              Defendants-Respondents,

                         and

                  City of Elizabeth,

               Intervenor-Respondent.

       On certification to the Superior Court,
                 Appellate Division.

      Argued                       Decided
  January 4, 2022               March 14, 2022


CJ Griffin argued the cause for appellant (Pashman Stein
Walder Hayden, attorneys; CJ Griffin and Joshua P. Law,
on the briefs).

April C. Bauknight, Assistant County Counsel, argued
the cause for respondents Union County Prosecutor’s
Office and John Esmerado (Bruce H. Bergen, Union
    County Counsel, attorney; April C. Bauknight, on the
    briefs).

    Robert F. Varady argued the cause for respondent City of
    Elizabeth (La Corte, Bundy, Varady & Kinsella,
    attorneys; Robert F. Varady, of counsel, and Christina M.
    DiPalo, on the briefs).

    Alexander Shalom argued the cause for amicus curiae
    American Civil Liberties Union of New Jersey (American
    Civil Liberties of New Jersey Foundation, attorneys;
    Alexander Shalom and Jeanne LoCicero, on the brief).

    Michael R. Noveck, Assistant Deputy Public Defender,
    argued the cause for amici curiae Association of Criminal
    Defense Lawyers of New Jersey and Public Defender of
    New Jersey (Joseph E. Krakora, Public Defender, and
    Gibbons, attorneys; Lawrence S. Lustberg and Michael
    R. Noveck, on the brief).

    Alec Schierenbeck, Assistant Attorney General, argued
    the cause for amicus curiae Attorney General of New
    Jersey (Andrew J. Bruck, Acting Attorney General,
    attorney; Alec Schierenbeck and Raymond R. Chance,
    III, Assistant Attorneys General, of counsel, and Suzanne
    Davies and Valentina M. DiPippo, Deputy Attorneys
    General, on the brief).

    Bruce S. Rosen submitted a brief on behalf of amici
    curiae Reporters Committee for Freedom of the Press &
    24 Media Organizations (McCusker, Anselmi, Rosen, &
    Carvelli, attorneys; Bruce S. Rosen, on the brief).


CHIEF JUSTICE RABNER delivered the opinion of the Court.




                              2
      This appeal centers around an internal affairs investigation into

misconduct by a former police director. The key question is how to balance

the need for confidentiality in internal affairs investigations with the public’s

interest in transparency when a member of the public seeks access to records

of an investigation.

      The investigation here found that the former director of the Elizabeth

Police Department engaged in racist and sexist behavior while in office.

Plaintiff sought access to the internal affairs report under the Open Public

Records Act (OPRA),  N.J.S.A. 47:1A-1 to -13, and the common law right of

access. The Prosecutor’s Office denied the request, and the Appellate Division

ultimately ruled against plaintiff in a lawsuit he filed.

      Although we find that OPRA does not permit access to internal affairs

reports, those records can and should be disclosed under the common law right

of access when interests that favor disclosure outweigh concerns for

confidentiality.

      Existing caselaw on the common law offers guidance on how to evaluate

the need for confidentiality. See Loigman v. Kimmelman,  102 N.J. 98, 108

(1986). Today, we outline a number of factors to help courts evaluate the

other side of the balancing test -- the need for public disclosure. Those factors

include the nature and seriousness of the misconduct, whether it was


                                         3
substantiated, the discipline imposed, the nature of the official’s position, and

the person’s record of misconduct.

      In this case, the public interest in disclosure is great. An internal affairs

investigation confirmed that the civilian head of a police department engaged

in racist and sexist conduct for many years. To date, defendant has raised only

generalized concerns about confidentiality, and it does not appear that any

court has yet examined the actual internal affairs report. We cannot fully

evaluate defendant’s claims on the incomplete record before us.

      The internal affairs report should be disclosed, as the Attorney General

properly concedes, after the trial court reviews it and redacts parts that raise

legitimate confidentiality concerns. We therefore remand the matter to the

trial court for it to review the report, complete the necessary balancing test,

and enter an order of disclosure. We ask the court to proceed expeditiously.

                                         I.

      In February 2019, an attorney made a complaint to the Union County

Prosecutor’s Office on behalf of employees of the Elizabeth Police

Department. The complaint alleged that Police Director James Cosgrove, the

civilian head of the Department for more than two decades, used racist and

sexist language to refer to employees on multiple occasions.




                                         4
         In response, the Prosecutor’s Office conducted an internal affairs

investigation. On April 16, 2019, the Office notified the attorney in writing

that “Cosgrove has used derogatory terms in the workplace when speaking

about city employees,” in violation of Elizabeth’s policies against

discrimination and harassment. The Prosecutor’s Office noted “the complaints

are sustained.” The attorney disclosed the letter to the media, which reported

on it.

         On April 26, 2019, Attorney General Gurbir S. Grewal issued a public

statement about the Cosgrove matter. In it, he noted the two-month internal

affairs investigation had “concluded that, over the course of many years,

Director Cosgrove described his staff using derogatory terms, including racist

and misogynistic slurs.” Statement of Att’y Gen. Gurbir S. Grewal (Apr. 26,

2019), https://www.nj.gov/oag/newsreleases19/pr20190426c.html. The

Attorney General called on Cosgrove to resign immediately, appointed the

First Assistant Attorney General as Acting Union County Prosecutor, and

directed her to conduct an audit of the Police Department’s “workplace

culture.” Ibid. Cosgrove resigned soon after.

         On July 1, 2019, plaintiff Richard Rivera filed a request for records with

the Prosecutor’s Office based on OPRA and the common law. He asked for

(1) “the report regarding Elizabeth PD’s internal affairs issues and claims of


                                          5
racism and misogyny,” and (2) “all internal affairs reports regarding”

Cosgrove. Plaintiff acknowledged “that redactions may be required, for

example, to protect the identity of a complainant,” and asked for redacted

reports.

      The Prosecutor’s Office denied the request. As to the first item, it stated

that, “in general . . . no such report exists.” The Office declined to disclose the

internal affairs report on Cosgrove both because it was “exempt from

disclosure under OPRA” as a “personnel and/or internal affairs record,” and

because the “interest[s] in maintaining confidentiality significantly outweigh

[plaintiff’s] interests in disclosure.”

      To get access to the internal affairs report about Cosgrove, plaintiff filed

a complaint on August 21, 2019 against the Prosecutor’s Office and its records

custodian, relying on OPRA and the common law. In the alternative, plaintiff

asked the trial court to review the records, redact parts that are exempt from

public access, and disclose the remainder.

      The Prosecutor’s Office filed an answer along with a certification from

Assistant Prosecutor John G. Esmerado, the Office’s Investigations Supervisor.

Esmerado stated that

             multiple sworn law enforcement and civilian parties,
             throughout the investigation, . . . were extremely
             reticent to provide sworn statements if their statement
             was to be shared with any other party.              The
                                          6
            information gathering process was difficult given the
            sensitive nature of the inquiry. To release the
            information would unduly hamper and compromise
            the ability of the Union County Prosecutor’s Office to
            investigat[e] police chiefs and police directors in the
            future for alleged misconduct investigations.
            Investigations of a police director, as the civilian
            leader of the police department is always difficult
            given the understandably strong sense of leadership a
            police director brings to a department. To preserve
            our ability to gather facts, internal affairs reports must
            maintain confidentiality.

      The trial court granted the City of Elizabeth leave to intervene. In

support of its motion, Elizabeth submitted a certification from William

Holzapfel, the City Attorney. He expressed similar, generic concerns:

            The City requires that confidentiality of the facts
            discovered during the [internal affairs] investigation
            be maintained. . . . [T]he City has a real concern that
            even with redactions as to the identities of any
            complainants or any other persons who serve as . . .
            witnesses, the privacy interests of its employees
            involved will not be protected if there is a public
            disclosure of the Prosecutor’s report.

Holzapel added that disclosure “would have a 'chilling effect’ upon City

employees to report any future alleged violation of workplace policies.”

Holzapel noted that “[t]he City was advised of the findings of the internal

investigation” but did not say whether he reviewed the actual internal affairs

report.




                                        7
      At oral argument and in a later written order, the trial court concluded

the internal affairs report should be made available under OPRA. The judge

directed that “the complete set of investigation materials . . . into the conduct

of former Elizabeth Police Director James Cosgrove” be provided to the court

for in camera review. The court explained its intention was to disclose “the

thrust of the investigation” and also “protect those individuals who could

unnecessarily be at risk by public disclosure.” In light of the court’s ruling

under OPRA, it did not reach plaintiff’s common law claim.

      The Appellate Division granted leave to appeal, stayed the trial court’s

order, and later reversed its judgment. The Appellate Division initially found

the requested materials were not exempt as “personnel records” under OPRA.

(citing  N.J.S.A. 47:1A-10). The court, however, held that internal affairs

reports could not be disclosed under OPRA on other grounds. It relied on

 N.J.S.A. 47:1A-1 and -9, which provide that OPRA does not abrogate

exemptions from public access granted by statute or regulation. -- § 9(a), (b).
                                                                Id.

      The court explained that the Attorney General adopted an Internal

Affairs Policy and Procedures (IAPP) manual pursuant to his statutory

authority; the policy ensured that internal affairs records would be

confidential, with some exceptions; and the Legislature required all law

enforcement agencies to adopt guidelines consistent with the IAPP. As a


                                         8
result, the appellate court concluded that internal affairs reports were exempt

from disclosure under section 9. In addition, the court observed that disclosure

“could well . . . impair[] the laudable goals of IA investigations” and that

redacting “names and identifying circumstances . . . would likely prove very

difficult, if not impossible.”

      Next, the Appellate Division rejected plaintiff’s common law claim,

even though the trial court had not reached the issue. Without the benefit of

the internal affairs report itself, the court determined that defendant’s interest

in preventing disclosure outweighed plaintiff’s right to the documents. The

court noted that disclosure would discourage witnesses from coming forward,

“would likely disclose their identity,” and would frustrate the internal affairs

process. The court once again questioned the “adequacy of protecting

anonymity through simple redaction.”

      The Appellate Division later denied plaintiff’s motion for

reconsideration, in which he asserted it was error for the court to exercise its

original jurisdiction and address the common law claim.

      We granted plaintiff’s petition for certification.  246 N.J. 236 (2021).

We also granted leave to appear as amici curiae to the American Civil

Liberties Union of New Jersey (ACLU); the Association of Criminal Defense

Lawyers (ACDL) and the Public Defender, who submitted a joint brief; the


                                         9
Reporters Committee for Freedom of the Press along with twenty-four media

organizations (Reporters Committee); and the Attorney General.

                                        II.

      Plaintiff argues the internal affairs report should be made available

under both OPRA and the common law. He maintains that none of OPRA’s

exemptions apply. In particular, he contends that the Attorney General’s IAPP

does not fall within the enumerated exceptions under sections 1 and 9 of

OPRA. Plaintiff also submits that the Appellate Division erred in its analysis

of the common law right of access and should have remanded the matter to the

trial court for an in camera review of the internal affairs report.

      Various amici support plaintiff’s position and argue for the release of the

report. Focusing on the common law claim, the ACLU contends the Appellate

Division placed too much weight on the IAPP and the generalized need to

maintain confidentiality in internal affairs reports. The ACDL and Public

Defender argue that New Jersey law favors transparency in public records

requests and criminal discovery, and that internal affairs files often contain

evidence relevant to criminal cases that can be uncovered by a public records

request. The Reporters Committee points to other states that allow access to

records of misconduct by law enforcement and emphasizes how important it is

for journalists to obtain and report on such records.


                                        10
      The Prosecutor’s Office urges the Court to affirm the Appellate

Division. The Office asserts that internal affairs reports must be kept

confidential consistent with the IAPP as well as the letter and spirit of OPRA.

Applying the Loigman factors, the Prosecutor’s Office also contends the

records should not be accessible under the common law because the interest in

confidentiality outweighs the public’s interest in access. The City of

Elizabeth, as an intervenor, echoes those arguments.

      The Attorney General argues that all internal affairs materials are

exempt from disclosure under sections 1 and 9 of OPRA. According to the

Attorney General, however, appropriately redacted internal affairs reports may

be released under the common law in certain cases, based on a careful

balancing of the relevant interests. The Attorney General proposes a number

of factors for courts to consider in weighing the public’s interest in

transparency. In this case, the Attorney General concedes the factors “strongly

suggest that disclosure of the internal affairs report at issue . . . is appropriate.”

To determine what redactions are necessary, the Attorney General asks the

Court to remand the case to the trial court so that it can review the report in

camera and apply the relevant factors.




                                         11
                                       III.

      We begin with certain familiar principles about OPRA. OPRA is

designed to give members of the public “ready access to government records”

unless the statute exempts them from disclosure. Burnett v. County of Bergen,

 198 N.J. 408, 421 (2009). The law’s core concern is to promote transparency

in government. Id. at 414. Maximizing “knowledge about public affairs,” in

turn, can “ensure an informed citizenry and . . . minimize the evils inherent in

a secluded process.” Mason v. City of Hoboken,  196 N.J. 51, 64 (2008)

(quoting Asbury Park Press v. Ocean Cnty. Prosecutor’s Off.,  374 N.J. Super.
 312, 329 (Law Div. 2004)). Yet without access to government records, even

the most engaged members of the public “cannot monitor the operation of our

government or hold public officials accountable.” Fair Share Hous. Ctr., Inc.

v. State League of Muns.,  207 N.J. 489, 502 (2011).

      To help achieve those aims, the statute broadly defines the term

“government record” as any document “made, maintained or kept on file in the

course of . . . official [government] business.”  N.J.S.A. 47:1A-1.1. OPRA

also exempts more than twenty categories of records from the definition, ibid.,

and places on public agencies the burden to prove that a requested item is

exempt from disclosure, id. § 6.




                                       12
      Defendants argue that internal affairs reports are exempt under several

sections of the statute. One of the provisions defendants invoke is section

9(b), which provides that OPRA

            shall not abrogate or erode any executive or legislative
            privilege or grant of confidentiality heretofore
            established or recognized by the Constitution of this
            State, statute, court rule or judicial case law, which
            privilege or grant of confidentiality may duly be
            claimed to restrict public access to a public record or
            government record.

            [(emphases added).]

      To interpret a statute, we start with the text of the law and give words

their generally accepted meaning. DiProspero v. Penn,  183 N.J. 477, 492-93

(2005);  N.J.S.A. 1:1-1. In most situations, if the law is clear, our analysis is

complete. DiProspero,  183 N.J. at 492-93. Here, we find that the language of

section 9(b) clearly exempts internal affairs reports from public disclosure.

      The Attorney General has the authority under  N.J.S.A. 52:17B-4(d) to

“adopt rules and regulations for the efficient conduct of the work and general

administration of the” Department of Law and Public Safety. In 1991,

Attorney General Del Tufo issued the Department’s first Internal Affairs

Policy and Procedures manual. In re Att’y Gen. Directives,  246 N.J. 462, 483

(2021). It established a comprehensive process to address complaints of police

misconduct. Ibid. The IAPP also contained a confidentiality provision which


                                        13
“guaranteed that '[t]he progress of internal affairs investigations and all

supporting materials are considered confidential information.’” Ibid. (quoting

1 991 IAPP at 15).1

      The IAPP’s confidentiality provision has largely remained intact since

1991. The current IAPP allows for disclosure in certain limited circumstances

-- for example, at the direction of the county prosecutor or the Attorney

General, or pursuant to a court order. 2021 IAPP § 9.6.1. But access is to be

granted “sparingly,” for good cause. Id. § 9.6.2. Recently, the Attorney

General directed that law enforcement officers subject to major discipline are

to be identified publicly. In re Att’y Gen. Directives,  246 N.J. at 485, 488

(upholding Directive Nos. 2020-5 & 2020-6).




1
  The Attorney General draws a distinction between internal affairs
investigation “files” and “reports.” Files should encompass “the
investigation’s entire work product” and include “investigators’ reports,
transcripts of statements, and copies of all relevant documents.” 2021 IAPP
§ 9.3.2. The internal affairs report is prepared at the end of an investigation
and “consist[s] of an objective investigative report recounting all of the case’s
facts and a summary of the case, along with conclusions for each allegation,
and recommendations for further action.” Id. § 9.1.1.

       This case involves a request for internal affairs reports. The complaint
quotes and cites plaintiff’s OPRA request, which sought “[a] copy of all
internal affairs reports regarding . . . Cosgrove.” Complaint ¶ 30; see also id.
¶ 43. At oral argument, plaintiff’s counsel confirmed the request was for
“reports,” not witness statements or work product. Our focus is therefore on
the internal affairs report or reports about Cosgrove.
                                        14
      In 1996, the Legislature enacted a law that “underscores the force of the

IAPP.” Id. at 488. The statute,  N.J.S.A. 40A:14-181, directs all law

enforcement agencies to “adopt and implement guidelines which shall be

consistent with the” IAPP manual. When section 181 was enacted, the IAPP

conferred confidentiality on internal affairs records, and the new law

effectively made the IAPP’s provisions required policy for law enforcement

agencies. See Fraternal Ord. of Police, Newark Lodge No. 12 v. City of

Newark (FOP),  244 N.J. 75, 101 (2020).

      Once again, the critical language in section 9(b) states that OPRA “shall

not abrogate or erode any . . . grant of confidentiality . . . recognized by . . .

statute.”  N.J.S.A. 47:1A-9(b). Viewed through that lens, section 181, a

statute, effectively recognizes a grant of confidentiality established by the

IAPP. OPRA may not abrogate such a grant of confidentiality. Ibid. Section

9(b) of OPRA therefore exempts internal affairs reports from public

disclosure.

      As a result, we do not reach the parties’ other arguments relating to

sections 1, 1.1, 9(a), or 10 of OPRA.

                                         IV.

      Rivera alternatively seeks access to the internal affairs report under the

common law. Although both paths raise similar considerations, OPRA does


                                         15
not limit the right of access to government records under the common law. N.

Jersey Media Grp., Inc. v. Township of Lyndhurst,  229 N.J. 541, 578 (2017);

 N.J.S.A. 47:1A-8 (“Nothing contained in [OPRA] . . . shall be construed as

limiting the common law right of access to a government record, including

criminal investigatory records of a law enforcement agency.”).

                                       A.

      The definition of a public record under the common law is broader than

under OPRA. Mason,  196 N.J. at 67. To constitute a common law public

record, an item must “be a written memorial . . . made by a public officer, and .

. . the officer [must] be authorized by law to make it.” Nero v. Hyland,  76 N.J.
 213, 222 (1978) (quoting Josefowicz v. Porter,  32 N.J. Super. 585, 591 (App.

Div. 1954)). Under that standard, the internal affairs report is a public record.

      To obtain records under “this broader class of materials, [a] requestor

must make a greater showing than OPRA requires.” Lyndhurst,  229 N.J. at
 578. In particular, “(1) 'the person seeking access must establish an interest in

the subject matter of the material’; and (2) 'the [person’s] right to access must

be balanced against the State’s interest in preventing disclosure.’” Ibid.

(quoting Mason,  196 N.J. at 67-68). Finding the right balance calls for a

careful weighing of the competing interests. Loigman,  102 N.J. at 108.




                                       16
      The Court in Loigman identified six factors to consider in balancing the

interests:

             (1) the extent to which disclosure will impede agency
             functions by discouraging citizens from providing
             information to the government;

             (2) the effect disclosure may have upon persons who
             have given such information, and whether they did so
             in reliance that their identities would not be disclosed;

             (3) the extent to which agency self-evaluation,
             program improvement, or other decisionmaking will
             be chilled by disclosure;

             (4) the degree to which the information sought
             includes factual data as opposed to evaluative reports
             of policymakers;

             (5) whether any findings of public misconduct have
             been insufficiently corrected by remedial measures
             instituted by the investigative agency; and

             (6) whether any agency disciplinary or investigatory
             proceedings have arisen that may circumscribe the
             individual’s asserted need for the materials.

             [Id. at 113.]

The list focuses primarily on the State’s interest in preventing disclosure.

      Statutes and regulations can also factor into the balancing process but do

not determine its outcome. Expressions of executive or legislative policy can

weigh very heavily in the analysis, but they are not dispositive. Home News v.

Dep’t of Health,  144 N.J. 446, 455 (1996); S. N.J. Newspapers, Inc. v.


                                        17
Township of Mt. Laurel,  141 N.J. 56, 76 (1995); Higg-A-Rella, Inc. v. County

of Essex,  141 N.J. 35, 48 (1995).

      The Court has previously looked to the common law to consider the

release of law enforcement records that were not accessible under OPRA. See

Lyndhurst,  229 N.J. at 578-81 (ordering disclosure of dash cam recordings);

Paff v. Ocean Cnty. Prosecutor’s Off.,  235 N.J. 1, 30 (2018) (remanding to

consider the release of dash cam footage); Gilleran v. Township of Bloomfield,

 227 N.J. 159, 177-78 (2016) (noting that footage from a security camera

protecting public facilities could qualify for release in certain circumstances).

      In Gannett Satellite Information Network, LLC v. Township of Neptune,

the Appellate Division recently upheld a trial court’s decision to release a

police officer’s internal affairs records.  467 N.J. Super. 385, 391 (App. Div.

2021). After his multiple incidents of domestic violence, the officer shot and

killed his ex-wife with his service revolver, in front of their young daughter.

Id. at 391-92. The court concluded the records were exempt from disclosure

under OPRA but should be made available under the common law. Id. at 391.

As part of its balancing of interests, the court pointed to the horrific nature of

the crime committed by an off-duty officer, the public’s “strong interest in

knowing how such an event could have occurred” in light of the officer’s

history, and the extensive public reporting on the matter. Id. at 408-09.


                                        18
                                        B.

      The trial court ordered disclosure in this case based on its reading of

OPRA. As a result, it did not analyze Rivera’s common law claim or balance

the relevant interests. On appeal, neither party briefed or argued the common

law claim. The Appellate Division mistakenly assumed original jurisdiction

and addressed the issue.

      Appellate courts can “exercise . . . original jurisdiction as is necessary to

the complete determination of any matter on review.” R. 2:10-5. That power

should be invoked “sparingly,” State v. Jarbath,  114 N.J. 394, 412 (1989), and

is generally used when the record is adequately developed and no further fact-

finding is needed, Price v. Himeji, LLC,  214 N.J. 263, 294-95 (2013); State v.

Santos,  210 N.J. 129, 142 (2012). Original jurisdiction can also be invoked

“to eliminate unnecessary further litigation,” Santos,  210 N.J. at 142, or when

the public interest favors “an expeditious disposition of [a] significant issue[],”

Karins v. City of Atlantic City,  152 N.J. 532, 540-41 (1998).

      In this case, the record is incomplete and does not allow for the fact-

specific balancing test required under the common law. The internal affairs

report is not in the record and has not been reviewed by the trial court. And

there are no factual findings to review.




                                        19
      The record consists primarily of two brief certifications from the

Prosecutor’s Office and the City of Elizabeth that do not disclose particular

facts about what took place. As noted earlier, the certifications chiefly contain

generalized statements about how disclosure of the internal affairs report might

not protect the privacy interests of witnesses and employees, could have a

chilling effect on their willingness to report violations in the future, and could

thus hamper future investigations into police misconduct.

      The trial court is the best forum to elicit facts about the parties’ interests

under the common law and to balance those interests. See Phila. Newspapers,

Inc. v. Dep’t of L. & Pub. Safety,  232 N.J. Super. 458, 466 (App. Div. 1989).

For that reason, appellate courts routinely remand cases to the Law Division to

conduct the balancing test. See, e.g., Paff,  235 N.J. at 30; Gilleran,  227 N.J. at
 177; S. N.J. Newspapers, Inc.,  141 N.J. at 75; S. Jersey Publ’g Co. v. N.J.

Expressway Auth.,  124 N.J. 478, 498 (1991); Drinker Biddle & Reath LLP v.

Dep’t of L. & Pub. Safety,  421 N.J. Super. 489, 501 (App. Div. 2011).

Because the record is inadequate to fully resolve plaintiff’s common law

claim, and the trial court has not yet addressed the issue, we remand the matter

to the trial judge to review the internal affairs report in camera and complete a

fact-sensitive balancing test.




                                        20
       We also offer additional guidance to assist trial courts in balancing the

public interest and the need for confidentiality. In doing so, we draw on a

number of thoughtful suggestions offered by the Attorney General and

plaintiff.

                                        C.

       The Loigman factors are not a complete list of relevant considerations,

as the Court noted in its decision.  102 N.J. at 113. They largely examine only

one side of the balancing test -- the need for confidentiality. Ibid.

Confidentiality in internal investigations can be important in certain matters to

encourage witnesses to come forward and cooperate; to protect personal

information about witnesses, victims, the subject of an investigation, and

others; and to avoid impairing the internal affairs process, among other

reasons. See ibid.; FOP,  244 N.J. at 106. Those concerns are reflected in the

IAPP’s treatment of internal affairs materials generally.

       The Loigman Court acknowledged that the six factors it identified, as

well as other considerations, “should be balanced [against] the importance of

the information sought to the plaintiff’s vindication of the public interest.”

Loigman,  102 N.J. at 113. We turn our attention to that part of the balancing

test now.




                                        21
      In general, the public has an interest in the disclosure of internal affairs

reports in order to hold officers accountable, to deter misconduct, to assess

whether the internal affairs process is working properly, and to foster trust in

law enforcement. See Lyndhurst,  229 N.J. at 579-80. The public interest in

transparency may be heightened in certain situations depending on a number of

considerations. They include the following factors and others:

      (1) the nature and seriousness of the misconduct. Serious misconduct

gives rise to a greater interest in disclosure. For example, misconduct that

involves the use of excessive or deadly force, discrimination or bias, domestic

or sexual violence, concealment or fabrication of evidence or reports, criminal

behavior, or abuse of the public trust can all erode confidence in law

enforcement and weigh in favor of public disclosure;

      (2) whether the alleged misconduct was substantiated. Unsubstantiated

or frivolous allegations of misconduct present a less compelling basis for

disclosure;

      (3) the nature of the discipline imposed. Investigations that result in

more serious discipline, like an officer’s termination, resignation, reduction in

rank, or suspension for a substantial period of time, favor disclosure. See In re

Att’y Gen. Directives,  246 N.J. at 485;




                                        22
      (4) the nature of the official’s position. Wrongdoing by high-level

officials can impair the work of the department as a whole, including the

functioning of the internal affairs process; and

      (5) the individual’s record of misconduct. The public’s interest in

disclosure extends to all officers -- regardless of rank -- whose serious or

repeated misconduct may pose a danger to the public.

      As to all of those areas, transparency can expose problems that need to

be addressed or reassure the public about police conduct.

      We do not rely on whether an allegation has already been the subject of

public interest as part of the balancing process. Official statements or leaks

that may attract public attention should not drive the disclosure analysis; the

question is whether the misconduct in question is rightly a matter of public

interest, even if the information has not yet been revealed.

      To assess the above factors -- those in favor of confidentiality as well as

disclosure -- the parties should present more than generalized, conclusory

statements. See Paff,  235 N.J. at 28; Lyndhurst,  229 N.J. at 580. More

detailed objections enable judges to conduct the delicate balancing the

common law requires. As part of that analysis, we do not require judges to

review actual internal affairs reports in every case. See S. Jersey Publ’g Co.,




                                        23
 124 N.J. at 499. A preliminary review of the relevant factors may suffice in

individual cases.

                                        V.

      As noted earlier, the internal affairs report qualifies as a public record

under the common law. And defendant and the City of Elizabeth do not

dispute that plaintiff has an interest in the documents requested. We therefore

focus on the required balancing of interests under the common law.

      There are good reasons to protect the confidentiality of internal affairs

reports under the common law in many instances. This is not one of them.

      In this case, the Attorney General concedes that some form of the

internal affairs report about Cosgrove should be disclosed under the common

law. A number of the above factors weigh heavily in favor of disclosure and

lead to the same conclusion.

      The allegations against Cosgrove involved serious misconduct -- racist

and sexist behavior in office over an extended period of time. An investigation

substantiated the serious claims against Cosgrove. That finding led to his

resignation weeks later. See Lyndhurst,  229 N.J. at 580 n.10 (noting the need

for confidentiality may wane after an investigation has ended).

      Cosgrove held the position of police director, the civilian leader of the

Elizabeth Police Department. As someone at the highest echelon of the


                                        24
department, his behavior had the capacity to influence others and set the tone

for the department. His position could also cast doubt on the department’s

internal affairs process and its ability to monitor itself, and raise questions

about whether others knew what was happening.

      In a matter like this, the public interest in disclosure is great. Racist and

sexist conduct by the civilian head of a police department violates the public’s

trust in law enforcement. It undermines confidence in law enforcement

officers generally, including the thousands of professionals who serve the

public honorably.

      As we recently noted, “access to public records fosters transparency

[and] accountability.” Libertarians for Transparent Gov’t v. Cumberland

County, ___ N.J. ___, ___ (2022) (slip op. at 18-19). Public access helps deter

instances of misconduct and also helps ensure an appropriate response when

misconduct occurs. In the long run, access to reports of police misconduct like

the one sought here promotes public trust.

      We cannot fully evaluate defendant’s concerns about confidentiality

because they are supported by generic arguments. The trial court here can best

assess any potentially legitimate confidentiality concerns by reviewing the

report in camera and making appropriate redactions. See S. Jersey Publ’g Co.,

 124 N.J. at 499. At a minimum, judges should redact the names of


                                        25
complainants, witnesses, informants, and cooperators, as well as information

that could reasonably lead to the discovery of their names; non-public,

personal identifying information about officers and others, such as their home

addresses and phone numbers; and personal information that would violate a

person’s reasonable expectation of privacy if disclosed, such as medical

information.2

      For those reasons, we agree with the Attorney General that the internal

affairs report should be disclosed. At this time, though, without a more

complete record and factual findings to review, we are not in a position to

determine the scope of what can be released. We therefore remand to the trial

court to review the internal affairs report in camera and complete the necessary

balancing test on an expedited basis.

                                        VI.

      For those reasons, we reverse the judgment of the Appellate Division

and remand the matter for further proceedings consistent with this opinion.




2
  In his OPRA request, plaintiff asked the Prosecutor’s Office to produce
redacted records to protect the identity of any complainants. Before this
Court, he continues to have no objection to redactions of names and other
identifying information about complainants and witnesses.
                                        26
      JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS
and JUDGE FUENTES (temporarily assigned) join in CHIEF JUSTICE
RABNER’s opinion.




                               27